01975022
10-28-1999
Robert W. Sanchez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Robert W. Sanchez, )
Appellant, )
) Appeal No. 01975022
v. ) Agency No. 1E-801-1038-94
) Hearing No. 320-96-8019X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of national origin (Hispanic)
and physical disability (cervical neuritis), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.
Appellant alleges he was discriminated against when he was denied overtime
between January 1, 1993 to April 20, 1994. This appeal is accepted in
accordance with EEOC Order No. 960.001.
BACKGROUND
The record reveals that appellant, a PS-6 Limited Duty Letter
Sorting Machine Clerk at the agency's General Mail Facility, Denver
Colorado, filed a formal EEO complaint with the agency on July 8, 1994,
alleging discrimination as referenced above. At the conclusion of the
investigation, appellant requested a hearing before an Equal Employment
Opportunity Commission (�EEOC�) Administrative Judge (�AJ�). Following a
hearing, the AJ issued a Recommended Decision (RD) finding discrimination.
The AJ concluded that appellant established, by a preponderance of the
evidence, that he was subjected to unlawful discrimination based on his
disability. However, the AJ determined that appellant failed to establish
that he was discriminated against on the basis of his national origin.
To remedy the established discrimination, the AJ recommended that the
agency: (1) cease and desist from further discriminatory conduct; (2)
pay all lost overtime by determining the average overtime earned by
non-disabled employees for both before/after and full-tour overtime,
excluding the time frame when appellant did not request full-tour
overtime; (3) pay all pecuniary and nonpecuniary compensatory damages
necessary to compensate appellant for harm suffered; (4) post an
appropriate notice; and (5) provide EEO training to responsible agency
officials.<1>
The agency's FAD adopted the AJ's findings. However, as to the remedies,
the agency rejected the AJ's recommended compensatory damages award,
reasoning that there had been no direct evidence presented to justify
such an award. The agency also held that contrary to the AJ's finding,
appellant was only eligible for full-tour overtime between the period
of April 1, 1994 to April 20, 1994.
On appeal, appellant contends that the agency's decision regarding remedy
is incorrect and does not provide �make whole� relief. Specifically,
appellant disputes the agency's denial of compensatory damages and full
tour overtime pay. The agency stands on the record and requests that
the Commission affirm its FAD.
ANALYSIS
Compensatory Damages
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for all post-Act pecuniary losses, and for
nonpecuniary losses, such as, but not limited to, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation, and loss of health. In this regard,
the Commission has authority to award such damages in the administrative
process. See West v. Gibson, No. 98-238, 1999 WL 380643 (U.S. June 14,
1999). Compensatory damages do not include back pay, interest on back
pay, or any other type of equitable relief authorized by Title VII. To
receive an award of compensatory damages, a complainant must demonstrate
that she has been harmed as a result of the agency's discriminatory
action; the extent, nature and severity of the harm; and the duration
or expected duration of the harm. Rivera v. Department of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsid. denied,
EEOC Request No. 05940927 (December 11, 1995); Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992). An appellant is
required to provide objective evidence that will allow an agency to assess
the merits of a complainant's request for emotional distress damages.
See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January
5, 1993).
There are no definitive rules governing the amount of nonpecuniary
damages to be awarded. However, nonpecuniary damages must be limited
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible, see Carter v. Duncan - Higgins,
Ltd., 727 F.2d 1225 (D.C. Cir. 1984), and should take into account the
severity of the harm and the length of time that the injured party has
suffered the harm. Carpenter v. Department of Agriculture, EEOC Appeal
No. 01945652 (July 17, 1995). Nonpecuniary and future pecuniary damages
are limited to an amount of $300,000.00. The Commission notes that
for a proper award of nonpecuniary damages, the amount of the award
should not be "monstrously excessive" standing alone, should not be
the product of passion or prejudice, and should be consistent with the
amount awarded in similar cases. See Damiano v United States Postal
Service, EEOC Request No. 05980311 (February 26, 1999); Ward-Jenkins
v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999)
(citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).
Applying the above legal standards, we agree with the AJ that appellant
has submitted sufficient unrebutted evidence to establish that he suffered
emotional harm as a result of the agency's discrimination. The AJ's RD
cites several instances in the record where appellant testified as to the
effect the discrimination had on his mental health. Appellant testified
that he experienced stress at home and at work, and interference with
the enjoyment of life in general. We find that this uncontroverted
evidence establishes appellant's entitlement to compensatory damages.
See Sinott v. Department of Defense, EEOC Appeal No. 01952872 (September
19, 1996)(stating that an appellant's own testimony, along with the
circumstances of a particular case, can establish mental or emotional
harm).
Although the AJ did not make a determination on the amount of compensatory
damages appellant was entitled to, we note that the Commission has
awarded compensatory damages in cases somewhat similar to appellant's.
Yates v. United States Postal Service, EEOC Appeal No. 01973250 (March
11, 1999)($1,500 in nonpecuniary damages where appellant provided only
sparse statements during the hearing regarding his emotional distress);
Pailin v. Department of Defense, EEOC Appeal No. 019514350 (January 26,
1998)($2,500.00 in nonpecuniary damages where appellant was denied
training on the basis of race, and testified that she experienced
tension, depression, and withdrawal from coworkers); DeMeuse v. United
States Postal Service, EEOC Appeal No. 01950324 (May 22, 1997)($1,500.00
in nonpecuniary damages where appellant was frisked by a supervisor,
and testified as to exacerbation of post-traumatic stress disorder);
Lawrence v. United States Postal Service, EEOC Appeal No. 01952288
(April 18, 1996)($3,000.00 in nonpecuniary damages for sexual
harassment where appellant presented primarily non-medical evidence
that she was irritable, experienced anxiety attacks, and was shunned
by her co-workers); Benson v. Department of Agriculture, EEOC Appeal
No. 01952854 (June 27, 1996)($5,000.00 in nonpecuniary damages where
the appellant, his relatives, and his colleagues offered testimony
regarding the embarrassment and humiliation appellant suffered as a
result of discrimination).
In the present case, the only evidence concerning emotional or mental
harm comes from appellant's few statements at the hearing. While we find
appellant's testimony credible, we also find that this evidence does
not rise to the level of severity meriting a large nonpecuniary award.
The Commission generally awards large nonpecuniary awards in cases where
an appellant establishes severe emotional harm and/or a long-term injury.
See Finlay v. United States Postal Service, EEOC Appeal No. 01942985
(April 29, 1997) ($100,000 in nonpecuniary damages for severe
psychological injury over four years which was expected to continue
for an indeterminate period of time ); Wallis v. United States Postal
Service, EEOC Appeal No. 01950510 (November 13, 1995) ($50,000.00 in
nonpecuniary damages for aggravation of pre-existing emotional condition,
where effects were expected to last at least seven years). Based on the
foregoing evidence which establishes the stress and emotional discomfort
sustained by appellant and upon consideration of damage awards reached
in comparable cases, the Commission finds that appellant is entitled to
award of nonpecuniary damages in the amount of $1,500.00.
Overtime Pay
The United States Supreme Court has held that one of the central
purposes of the anti-discrimination laws is �to make persons whole for
injuries suffered on account of unlawful employment discrimination.�
Albermarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). The Supreme
Court has further held that the attainment of this objective �requires
that persons aggrieved by the consequences and effects of [an] unlawful
employment practice be ... restored where they would have been were it
not for the unlawful discrimination.� Franks v. Bowman Transportation
Co., 424 U.S. 747, 764 (1976). While these principles were first
enunciated in cases from the private sector, they apply equally to the
federal government. Day v. Mathews, 530 F. 2d 1083 (D.C. Cir. 1976).
This Commission's regulations, interpreting the anti-discrimination laws,
require that when an agency or the Commission finds that an employee has
been discriminated against, the agency shall provide full relief to the
aggrieved individual. 29 C.F.R. �1614.501(a)(3).
The parties agree that appellant was improperly denied before/after
tour overtime during the relevant period and that appellant's medical
restrictions limited him to a ten-hour work day. However, appellant
contends that in addition to before/after tour overtime, he is entitled to
full-tour overtime<2> for the relevant period. Specifically, appellant
contends that he should be awarded one of two remedies: (1) all of the
full-tour, schedule-day-off, and penalty overtime available during the
relevant periods with an additional 1,500 hours of overtime make-up;
or (2) the equivalent overtime pay earned by the highest comparative
employee ($35,000.00) and 1,500 hours of overtime make-up. The agency
provides no rebuttal to appellant's requests.
After reviewing the record, we agree with the AJ's finding that appellant
requested and was unlawfully denied full-tour overtime from January
1, 1993 to September 30, 1993 and from April 1, 1994 to April 20,
1994.<3> For the January 1, 1993 to September 30, 1993 period, the
AJ drew an adverse inference against the agency because it failed to
show �good cause� for its failure to produce the overtime documentation
for the period. As for the latter period, the AJ found that appellant
requested full-tour overtime and that the agency made a policy decision
to restrict limited duty employees' overtime opportunities. To remedy
the unlawful discrimination, we find that in addition to the agreed
upon before/after overtime, the agency shall also pay appellant the
appropriate amount of full-tour overtime by calculating the average
overtime earned by comparative non-disabled employees during the relevant
period subject to appellant's ten-hour per day medical restriction.
Since the above-described award completely remedies the discrimination
in this case, we find no justification for appellant's request for an
additional 1,500 hours of overtime make-up.
CONCLUSION
Accordingly, based on a thorough review of the record, and for the
foregoing reasons, it is the decision of this Commission to AFFIRM the FAD
in so far as it adopted the AJ's finding of disability discrimination.
However, we REVERSE the FAD in so far as it failed to provide the
appropriate remedies. The Commission will order the agency to provide the
relief awarded by the RD to the extent the agency has not yet done so.
Therefore, should the agency fail to provide such relief, and does not
comply with the ORDER below, appellant may petition the Commission for
enforcement of the Order. See 29 C.F.R. �1614.503(a).
ORDER (D1092)
To the extent it has not already done so, the agency is ORDERED to take
the following remedial actions:
1. Within thirty (30) days of the date on which this decision becomes
final, the agency shall tender to appellant nonpecuniary compensatory
damages in the amount of $1,500.00.
2. The agency shall issue a check to appellant for the appropriate
amount of overtime pay with interest, no later than thirty (30) calendar
days after the date this decision becomes final. The amount of overtime
pay shall be calculated by determining the average overtime earned by
comparative non-disabled employees, subject to appellant's ten-hour
per day medical restriction. If there is a dispute regarding the exact
amount of overtime pay, the agency shall issue a check to appellant for
the undisputed amount within thirty (30) calendar days of the date the
agency determines the amount it believes to be due. The appellant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. The agency shall provide EEO training regarding the duty to
accommodate disabled employees to managers at the facility within
forty-five (45) days of the date on which this decision becomes final.
4. The agency shall post the attached Notice in accordance with the
directive below.
5. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of
the agency's calculation of overtime pay including evidence that the
corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington,
D.C. 20036. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant has the right to
file a civil action on the underlying complaint in accordance with the
paragraph below entitled "Right to File A Civil Action." 29 C.F.R. ��
1614.408 and 1614.409. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42
U.S.C. � 2000e-16(c)(Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. � 1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil
action must be filed within the time limits as stated in the paragraph
above ("Right to File A Civil Action").
FOR THE COMMISSION:
October 28, 1999
DATE Frances M. Hart
Executive Officer
Executive Secretariat1 There is no evidence indicating that the
agency fully complied with any of the AJ's recommendations.
2 For purpose of this decision, full-tour overtime means those
periods of overtime other than before/after tour overtime and includes
schedule-day-off overtime and penalty overtime.
3 The AJ found that for the period between October 1, 1993 and March 31,
1994, appellant did not request full-tour overtime. While appellant
asserts that others worked full-tour overtime without making a formal
request, we find that appellant failed to present credible evidence
supporting his assertion.